# Guddu (In Jail) v. State of U.P

- **Citation:** (2021) 10 ILRA 131
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-09-02
- **Case number:** Criminal Appeal No. 3030 of 2018
- **Bench:** Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/guddu-in-jail-v-state-of-u-p-46216
- **Pages:** 11

## Headnote

Law
-Code
of
Criminal
Procedure, 1973-Section 374(2) - Indian
Penal Code, 1860-Section 498-A, 304-B
302/34 - Dowry Prohibition Act, 1961Section 4-challenge to-conviction-accused
poured
kerosene
oil
on
his
wife
(deceased) and set her ablazed for nonfulfillment of additional demand of
dowry-she remained alive for five days
after
making
dying
declaration-PW-7
(Doctor)
and
PW-9(Magistrate)
independent witnesses had not turned
hostile-she was in a fit condition to make
the statement at the relevant time-she
only attributed the acts of cruelty, beating
and burning to her husband, who was a
gambler and alcoholic-hostility of PW-1,
PW-3 and PW-4 cannot demolish the value
and reliability of the dying declaration as
132 INDIAN LAW REPORTS ALLAHABAD SERIES
none of the witnesses or the authorities
involved
in
recording
the
dying
declaration had turned hostile-trial court
committed no error in convicting the
appellant.(Para 1 to 44)

The appeal is dismissed. (E-6)

List of Cases cited:

## Text

10 All. Guddu Vs. State of U.P.
131
and worth believing. Therefore, reliance
can be placed on her testimony without any
doubt.

17. There was allegation under
Section 354 IPC against the accusedappellant also. The victim (PW2) said in
her statement that on 28.9.2013, accused
came to her house and molested her by
pressing her breast and on her crying, her
mother came there and the accused fled
away. Ramkali (PW3), who is mother of
victim is also eye-witness of this fact. She
also
said
in
her
statement
that
approximately before three years from the
date of making the statement before learned
trial court, she was working inside her
house and victim was standing in courtyard. At that time, accused-appellant
entered her house and started molesting the
victim. On victim's crying, she went there
and
saw
herself
accused-appellant
molesting the victim. Therefore, both PW2
and PW3 corroborated their statements. On
this point also, defence could not extract
anything in cross-examination, which could
assail their credibility.

18. Lastly, learned counsel for the
appellant stated that accused has no
criminal history. In my opinion, this case is
not the case where criminal history of the
accused is relevant. There is charge of rape
and molestation against the appellant.
Hence, having or not having criminal
history is not at all relevant in such type of
cases.

19. No other argument was raised on
behalf of appellant.

20.

Hence,
with
the
above
observations, I am of the considered view
that prosecution was very well succeeded
in proving its case beyond doubt and
learned trial court has rightly convicted and
sentenced the accused-appellant for the
charges levelled against him.

21. In view of above, I find no merit
in this appeal.

22. Appeal is dismissed, accordingly.
----------
(2021)10ILR A131
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.09.2021

BEFORE

THE HON'BLE AJAI TYAGI, J.

Criminal Appeal No. 3030 of 2018

Guddu ...Appellant(In Jail)
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Amitabh Patel, Sri Manoj Kumar, Sri
Viresh Misra

Counsel for the Respondent:
A.G.A.

A.
Criminal
Law
-Code
of
Criminal
Procedure, 1973-Section 374(2) - Indian
Penal Code, 1860-Section 498-A, 304-B
302/34 - Dowry Prohibition Act, 1961Section 4-challenge to-conviction-accused
poured
kerosene
oil
on
his
wife
(deceased) and set her ablazed for nonfulfillment of additional demand of
dowry-she remained alive for five days
after
making
dying
declaration-PW-7
(Doctor)
and
PW-9(Magistrate)
independent witnesses had not turned
hostile-she was in a fit condition to make
the statement at the relevant time-she
only attributed the acts of cruelty, beating
and burning to her husband, who was a
gambler and alcoholic-hostility of PW-1,
PW-3 and PW-4 cannot demolish the value
and reliability of the dying declaration as
132 INDIAN LAW REPORTS ALLAHABAD SERIES
none of the witnesses or the authorities
involved
in
recording
the
dying
declaration had turned hostile-trial court
committed no error in convicting the
appellant.(Para 1 to 44)

The appeal is dismissed. (E-6)

List of Cases cited:

1. Koli Lakhmanbhai Chandabhai Vs St. of
Guj.(1999) 8 SCC 524

2. Ramesh Harijan Vs St. of U.P. (2012) 5 SCC
777

3. St. of U.P. Vs Ramesh Prasad Misra & anr.
(1996) AIR SC 2766

4. Lakhan Vs St. of M.P. (2010) 8 SCC 514

5. Krishan Vs St. of Har. (2013) 3 SC Cases 280

6. Ramilaben Hasmukhbhai Khristi Vs St. of Guj.
(2002) 7 SCC 56

(Delivered by Hon'ble Ajai Tyagi, J.)

1. This criminal appeal has been
preferred by the appellant-Guddu, who was
convicted and sentenced in S.T. No.124 of
2015 (State Vs. Guddu and others), arising
out of Case Crime No.494 of 2014,
registered under Sections 498-A, 304-B
I.P.C. and 302/34 I.P.C. in alternative and
Section 3/4 of Dowry Prohibition Act at
Police Station Khandauli, District Agra by
which
appellant
was
convicted
and
sentenced for ten years R.I. under Section
304-B I.P.C., for one year R.I. under
Section 498-A I.P.C. with fine of Rs.
5,000/- and two months in default and for
six months R.I. under Section 4 of D.P. Act
with fine of Rs.5,000/- and in default two
months additional imprisonment.

2. The relevant brief facts of the case
are that informant Bharat Singh lodged an
F.I.R. on 07.11.2014 at Police Station
Khandauli, District Agra with the averment
that he had got married her daughter-Pinki
on 23.03.2013 with Guddu-appellant son of
Sriniwas, resident of village Poiya, Police
Station Khandauli, District Agra and gave
dowry according to his capacity but Pinki's
husband, mother-in-law, father-in-law and
other relatives and family members were
not satisfied with the dowry and they
started torturing his daughter for additional
dowry. They started torturing mentally and
physically to his daughter and demanded a
motorcycle
as
additional
dowry;
his
daughter told such type of treatment and
demand to him several times and he tried to
sort out the matter but in vain. His son-inlaw and his family members continued
their demand and threatened that in case
their demand of additional dowry is not
made out, his daughter would be killed. On
04.11.2014, at about 9 PM, Pinki's
husband,
mother-in-law
Sheela
Devi,
father-in-law Sriniwas, brother of SriniwasNeta
(Chahiya
Sasur),
brother-in-law
Dinesh (Jeth), sister-in-law Meena (Jethani)
and
brother-in-law
Matadeen
(Dever)
poured kerosene oil on his daughter and set
her ablazed for non-fulfillment of their
additional demand of dowry. On getting
information of occurrence, informant went
to Heritage Hospital, Agra where his
daughter was admitted and fighting for life.
Informant's daughter-Pinki told him the
incident.

3. On the basis of above information,
Case Crime No.494 of 2014 was registered
at Police Station Khandauli, Agra. After
investigation, investigating officer charge
sheeted the husband of deceased Guddu,
her father-in-law Sriniwas and mother-inlaw Sheela Devi. Learned court below
conduced the trial against above three
accused persons by framing charge under
10 All. Guddu Vs. State of U.P.
133
Sections 498-A, 304-B I.P.C. and Section 3
and 4 of Dowry Prohibition Act and in
alternative under Section 302 read with
section 34 I.P.C.

4. After conclusion of trial while
passing the judgment, learned trial court
acquitted Shriniwas, father-in-law and
Sheela Devi, mother-in-law for all charges
levelled against them and convicted the
appellant-Guddu (husband of deceased) to
undergo ten years R.I. under Section 304-B
I.P.C., for one year R.I. under Section 498A I.P.C. with fine of Rs. 5,000/- and two
months in default and for six months R.I.
under Section 4 of D.P. Act with fine of
Rs.5,000/- and in default two months
additional imprisonment. All sentences
were directed to run concurrently.

5. Aggrieved with the judgment,
appellant-Guddu preferred this appeal.

6. Heard learned counsel for the
appellant and learned A.G.A. for the State.
Perused the record.

7. Learned counsel for the appellant
submitted
that
in
this
case,
First
Information Report was lodged against
eight
persons.
During
investigation,
according to Investigating Officer no
evidence was found against five persons
except husband, father-in-law and motherin-law of the deceased and charge sheet
was filed only against them. Hence, it is
clear that informant implicated all the
family members of husband of the
deceased
falsely
and
the
story
of
prosecution becomes more false by the fact
that after trial, learned trial court acquitted
father-in-law and mother-in-law of the
deceased and only husband is convicted. So
in all out of eight persons only one person
was convicted, hence it is very much clear
that all the family members of appellant
were falsely implicated and on this score
alone prosecution story becomes false and
it is well proved that there was no demand
for additional dowry and no one tortured
the deceased either physically or mentally.
Moreover, general allegations were made
against all the persons named in F.I.R.

8. It is further submitted by learned
counsel for the appellant that in this case,
all the witnesses of fact have turned hostile
and they did not support the prosecution
case. Learned counsel for the appellant has
submitted that P.W.-1 Bharat Singh,
informant and father of the deceased has
stated in his statement that no member of
family
of
the
appellant
demanded
additional dowry. They were satisfied with
the dowry. He has also submitted that his
daughter
never
made
complaint
of
additional dowry or any sort of cruelty
against her. This witness has also deposed
that when he reached to hospital, all family
members of appellant were present there
and busy in treatment of her injured
daughter.

9. Learned counsel for the appellant
has also submitted that P.W.-3 Bhagirath is
real brother of deceased. He has also
reiterated in his statement that deceased
never told him that his in-laws demanded
motorcycle as additional dowry because
they all were happy with the dowry given
in marriage. He has also stated that when
he reached to hospital after getting the
news of occurrence, all family members of
appellant were present there and he has
very specifically stated that neither the
appellant nor his family members set
ablazed her sister. It is also said by learned
counsel for the appellant that P.W.-4
Gabbar Singh is uncle of deceased Pinki.
He has also stated in his statement that
134 INDIAN LAW REPORTS ALLAHABAD SERIES
Pinki never told him regarding any demand
for additional dowry by her in-laws.

10. Learned counsel for the appellant
has submitted that P.W.-1, P.W.-3 and
P.W.4 all are very close family member of
deceased. They have not supported the
prosecution
case
rather
they
have
specifically denied the factum of demand
of additional dowry from deceased Pinki
and causing mental or physical cruelty
against her. They have also stated that they
have no role in burning the deceased Pinki.
All the three witnesses of fact have turned
hostile and prosecution made their crossexamination but even in cross-examination
nothing was extracted which could support
the prosecution case. Hence, learned trial
court has committed mistake by convicting
the appellant on such type of unsupported
evidence.

11. Learned counsel for the appellant
mainly argued that learned trial court has
convicted the appellant on the basis of
dying declaration of the deceased but that
dying declaration was not corroborated by
any other evidence, moreover, the dying
declaration Ex. KA-12 is not voluntarily or
truthful but tutored. Moreover, the above
dying declaration is fake because as per
medico legal report of injured/ deceased,
the deceased got 95% to 100% burn
injuries and her entire body was burnt
except her foot palm. P.W.-5, Dr. Sanjeev
Lavaniya, who conducted the post-mortem
of deceased has also stated in his statement
that deceased had superficial to deep burn
injuries on her entire body except both foot
palm. Due to this reason, her right feet's toe
impression was taken on her medico legal
report, which was prepared in Heritage
Hospital.
It
clearly
shows
that
deceased/injured's thumbs of hands were
not in position that their impression could
be taken on medico legal report but on
dying declaration Ex. KA-12 impression of
her right hand thumb was taken. It casts
heavy shadow on the genuineness of dying
declaration because on dying declaration it
was not possible to take the impression of
thumb of any hand.

12. Regarding dying declaration,
learned counsel for the appellant has
submitted that the concerned doctor who
treated the injured before her death, had not
given
fitness
certificate
on
dying
declaration. It is given by some other
doctor. Dr. Aditya Rai who was produced
as D.W.-2, treated the injured Pinki, while
the fitness certificate on dying declaration
is given by some other Dr. G.S. Chauhan.
D.W.-2, Dr. Aditya Rai has specifically
stated in his statement that he did not give
fitness certificate of injured Pinki for
making dying declaration so the said dying
declaration becomes more doubtful.

13. Learned counsel for the appellant
also submitted that as per the statement of
real brother of deceased Bhagirath who has
deposed as P.W.-3 at the time of dying
declaration, he himself, his family members
and many relatives were there. Learned
counsel for the appellant also said that they
had tutored the injured Pinki to make false
dying declaration, hence, this declaration is
the result of tutoring her. Hence, learned
trial court has committed mistake on
relying the dying declaration. It is next
submitted by learned counsel for the
appellant that dying declaration is also
doubtful because there were some new
version in dying declaration which was not
the prosecution case as it is written in dying
declaration that her husband eloped with a
girl from village to Agra and her husband
being the only child of his parents was very
beloved to all. Such type of version in
10 All. Guddu Vs. State of U.P.
135
dying declaration shows that it is fake and
false and result of tutoring. Such type of
uncorroborated dying declaration should
not have been believed by the trial court,
dying declaration was not corroborated by
any evidence by prosecution, hence,
learned trial court was negligent and in
error on placing reliance on the dying
declaration and wrongly convicted the
appellant.

14. Learned counsel for the appellant
has also submitted that real fact is that at
the time of burning, the deceased was
cooking food on Choola; suddenly the fire
of Choola put out and for lighting up it
again, the deceased put some kerosene oil
in Choola, suddenly the kerosene oil caught
fire and deceased also caught fire all of
sudden in her cloths and due to that reason
her body was burnt. At last learned counsel
for
the
appellant
also
stated
that
prosecution story is also failed because
after
getting
burn
injuries,
the
injured/deceased was admitted to hospital
by appellant and the material and articles,
collected from the place of occurrence were
not having smell of kerosene oil, it also
falsify the prosecution story.

15. Learned A.G.A. has vehemently
opposed the argument placed by learned
counsel for the appellant and submitted that
the witness of facts who turned hostile, was
result of compromise between both sides.
P.W.-1, P.W.-3 and P.W.-4 who were
family members and relative of the
deceased were won over by appellant and
his family members, for that reason they
turned hostile but their testimony cannot be
washed off only due to this reason, if their
testimony is analyzed as a whole, they have
also supported the prosecution case.

16. Learned A.G.A. has also argued
that even if witnesses have turned hostile,
this does not make any dent in prosecution
case because the dying declaration made by
deceased is well proved by prosecution
witnesses.
Learned
A.G.A.
has
also
submitted that dying declaration was
written by Additional City Magistrate and
before starting and after completion of
dying declaration, competent doctor has
given fitness certificate regarding the
consciousness and fit mental state of the
deceased to make dying declaration.
Learned A.G.A. has argued that if deceased
was tutored for making dying declaration,
she could have named other family
members of appellant also but she did not
do like that and dying declaration was
proved by P.W.-7 Dr. G.S. Chauhan, who
gave fitness certificate and P.W.-9 A.
Dinesh Kumar, Additional City Magistrate
who recorded the dying declaration.

17. Learned A.G.A. has submitted
that if dying declaration is fully proved,
made voluntarily and is truthful version of
the occurrence then it can be the sole basis
of
conviction
and
requires
no
corroboration.
Learned
A.G.A.
has
submitted that it is wrongly argued by
appellant that he got injured admitted in the
hospital. According to the hospital record,
injured Pinki was not brought to the
hospital by the appellant. The record shows
that she was brought by her father-in-law
and mother-in-law. As far as the smell of
kerosene oil is concerned, Investigating
Officer collected the material and articles
from the place of occurrence after five days
of occurrence, hence, it was not possible
the smell of kerosene oil to remain there for
five days. Hence, this does not weaken the
prosecution case.
136 INDIAN LAW REPORTS ALLAHABAD SERIES

18. Learned A.G.A. next submitted
that learned trial court has rightly convicted
the appellant on the basis of evidence on
record and it has not committed any error
by
relying
the
well
proved
dying
declaration which needed no corroboration.

19. At the outset learned counsel for
the appellant has submitted that out of eight
persons named in F.I.R., charge sheet was
submitted only against three persons and
out of these three, only one person i.e.
husband
of
deceased,
appellant
was
convicted by learned trial court and due to
this reason the entire prosecution story
becomes doubtful.

20. I am not convinced with the
aforesaid argument of prosecution. Against
whom Investigating Officer found evidence
during investigation, he submitted charge
sheet and during trial, whoever was found
guilty was convicted and sentenced. It does
not falsify the prosecution case.

21. Medico legal report of deceased
shows that she was not brought hospital by
appellant. In dying declaration also, the
deceased has stated that her younger
mother-in-law admitted her to hospital,
hence, it is false to say that appellant got
the deceased admitted in the hospital.
Hence, appellant's bona fide is also not
there and the argument regarding getting
the injured hospitalized by him is entirely
against the record.

22. Learned counsel for the appellant
has
emphasized
the
argument
that
prosecution has produced informant and
father of deceased Bharat Singh as P.W.-1,
real brother of deceased Bhagirath as P.W.-3
and uncle of deceased Gabbar Singh as P.W.-
4 and all these witnesses of fact have turned
hostile. Hon'ble Apex Court in Koli
Lakhmanbhai Chandabhai Vs. State of
Gujarat, 1999 (8) SCC 624 as held that
evidence of hostile witness can be relied upon
to the extent it supports the version of
prosecution and it is not necessary that it
should be relied upon or rejected as a whole.
It is settled law that evidence of hostile
witness also can be relied upon to the extent
to which it supports the prosecution version.
Evidence of such witness cannot be treated as
washed off the record. It remains admissible
in the trial and there is no legal bar to base his
conviction upon his testimony if corroborated
by other reliable evidence.

23. In Ramesh Harijan Vs. State of
U.P., 2012 (5) SCC 777, the Hon'ble Apex
Court has also held that it is settled legal
position that the evidence of a prosecution
witness cannot be rejected in toto merely
because the prosecution chose to treat him as
hostile
and
cross-examined
him.
The
evidence of such witness cannot be treated as
effaced or washed off the record altogether.

24. In State of U.P. Vs. Ramesh Prasad
Misra and another, 1996 AIR (Supreme
Court) 2766, the Hon'ble Apex Court held
that evidence of a hostile witnesses would not
be totally rejected if spoken in favour of the
prosecution or the accused but required to be
subjected to close scrutiny and that portion of
the evidence which is consistent with the case
of the prosecution or defence can be relied
upon. Thus, the law can be summarized to the
effect that evidence of a hostile witness
cannot be discarded as a whole, and relevant
part thereof, which are admissible in law, can
be used by prosecution or the defence.

25. In this present case, informantfather of the deceased, P.W.-1 Bharat
Singh, real brother of deceased, P.W.-3
Bhagirath and uncle of deceased P.W.-4
Gabbar Singh all turned hostile. P.W.-1,
10 All. Guddu Vs. State of U.P.
137
Bharat Singh has supported the prosecution
case in his examination-in-chief. He has
stated regarding demand of additional
dowry and torturing his daughter by the
appellant and his family members. P.W.-3,
Bhagirath has admitted in his evidence that
dying declaration of deceased was recorded
in Heritage Hospital, Agra. So it is not so
that entire evidence of witnesses of fact
should be rejected only due to the reason
that they have turned hostile. They have
supported the prosecution case to some
extent and when it is looked in the light of
the dying declaration of the deceased,
prosecution case also gets more strength.

26.
Learned
counsel
for
the
appellant
has
argued
that
dying
declaration
is
doubtful
and
not
corroborated by witnesses of fact, hence,
it cannot be the sole basis of conviction.
Legal position of dying declaration to be
the sole basis of conviction is that it can
be done so if dying declaration is
completely voluntarily and reliable. In
this regard, Hon'ble Apex Court has
summarized
law
regarding
dying
declaration in Lakhan Vs. State of
Madhya Pradesh (2010) 8 Supreme
Court Cases 514, in this case, Hon'ble
Apex Court held that the doctrine of
dying declaration is enshrined in the legal
maxim
nemo
moriturus
praesumitur
mentire, which means, "a man will not
meet his Maker with a lie in his mouth".
The doctrine of dying declaration is
enshrined in Section 32 of Evidence Act,
1872, as an exception to the general rule
contained in Section 60 of Evidence Act,
which provides that oral evidence in all
cases must be directed i.e. it must be the
evidence of a witness, who says he saw it.
The dying declaration is, in fact, the
statement of a person, who cannot be
called as witness and, therefore, cannot
be
cross-examined.
Such
statements
themselves are relevant facts in certain
cases.

27. The law on the issue of dying
declaration can be summarized to the
effect that in case the court comes to the
conclusion that the dying declaration is
true and reliable, has been recorded by a
person at a time when the deceased was
fit physically and mentally to make the
declaration and it has not been made
under any tutoring/duress/prompting; it
can be the sole basis for recording
conviction. In such an eventuality no
corroboration is required. It is also held
by Hon'ble Apex Court in the aforesaid
case, that a dying declaration recorded by
a competent Magistrate would stand on a
much higher footing than the declaration
recorded by office of lower rank, for the
reason that the competent Magistrate has
no axe to grind against the person named
in the dying declaration of the victim.

28. Learned counsel for the appellant
has assailed the dying declaration of the
deceased Pinki on following grounds;

(i) Injured/deceased was not in
position to make dying declaration,

(ii) Doctor, who did not treat the
injured/deceased, gave fitness certificate,

(iii) Injured was tutored before
making dying declaration, and

(iv) Some new version, apart from
case, is there in dying declaration.

29. Now as far as grounds no.(i) and
(ii) are concerned, learned counsel for the
appellant has submitted that deceased
sustained burn injuries and her 95% to
100% body was having burn injuries.
Doctor, who prepared medico legal report,
was
under
compulsion
to
take
the
138 INDIAN LAW REPORTS ALLAHABAD SERIES
impression of her right feet toe because her
both hands were completely burnt while
thumb impression of her right hand was
taken on dying declaration. As per the
medico legal report, deceased was not in
position to make dying declaration, heavy
95% to 100% burn injuries.

30. I am not convinced with the
argument of learned counsel for appellant
because defence has produced Dr. Aditya
Rai as D.W.-2, who treated the deceased
before her death. He himself has stated in
his statement that he had advised hospital
management to conduct medico legal
examination of the injured and for
recording her dying declaration. So if
deceased was not in position to make dying
declaration, as argued by appellant, then
why the doctor treating the patient, advised
hospital management to record her dying
declaration, it shows that she was in
position
to
make
dying
declaration.
Moreover, Dr. G.S. Chauhan, who gave
fitness certificate on dying declaration
before and after making it, has been
produced by prosecution as P.W.-7. This
doctor was also working in the same
hospital. He has stated in his statement that
patient was fully conscious. He has also
stated that when he gave fitness certificate,
the patient had bandage on all around her
body but there was no bandage on her face.
Although her face was burnt but there was
no bandage on it and only medicine was
applied on the face. It does not make any
difference on the genuineness of dying
declaration if certificate of fitness on it was
given by some other doctor because Dr.
G.S. Chauhan was also working in the
same hospital on day of recording the dying
declaration and it has nowhere questioned
by the defence that Dr. G.S. Chauhan was
not competent doctor. It is well within the
domain of doctor as an expert to certify
whether patient is conscious or not. No
question is put by defence on qualification
and ability of Dr. G.S. Chauhan to give
fitness certificate. Any qualified doctor can
judge whether patient is conscious and able
to make dying declaration or not.

31. As far as ground no. (iii) is
concerned, it is submitted by learned
counsel for the appellant that injured was
tutored before making dying declaration. In
support his argument, learned counsel for
the appellant has pointed out that P.W.-3,
Bhagirath has stated in his statement that
when he reached the hospital, family
members of both sides and relatives were
there near the patient and when dying
declaration was being recorded then also all
people were there. But this above statement
of P.W.-3 is falsified by the statement of
P.W.-7 Dr. G.S. Chauhan, who has stated
in his cross-examination that before giving
fitness certificate for dying declaration, he
turned out all the persons from there. The
similar statement is given by Additional
City Magistrate, who recorded dying
declaration. Additional City Magistrate, A.
Dinesh Kumar, P.W.-9 also has said in his
cross-examination that all the persons who
were near the patient were turned out by
him. P.W.-7, G.S. Chauhan and P.W.-9, A.
Dinesh Kumar are independent witnesses
and they both stated in their respective
statement that before recording the dying
declaration all the persons who were near
the patient were turned out by them. It
means that at the time of making dying
declaration, no person was near the patient,
who could tutore her. Hence, this argument
of appellant does not have any force.

32. Lastly regarding point no. (iv) is
concerned, a very weak argument is
advanced by learned counsel for the
appellant that some new version is there in
10 All. Guddu Vs. State of U.P.
139
dying declaration as her husband had
eloped with a girl from village to Agra
earlier and he was very beloved to his
parents.

33. In my opinion, if above version is
there in dying declaration, it cannot make
dying declaration doubtful. It is not necessary
that dying declaration must be confined to the
averments of First Information Report. In
dying declaration Ex. KA-12, deceased has
clearly stated how the occurrence took place,
hence, this argument of additional version is
not convincing argument.

34. All the above arguments raised by
learned counsel for the appellant regarding
truthfulness of dying declaration, do not have
any force. Dying declaration of deceased
Pinki is on record as Ex. KA-12, it is
recorded by Additional City Magistrate and
before making and after conclusion of dying
declaration, doctor has given certificate of
fitness of mental state of deceased.

35. Dr. G.S. Chauhan produced by
prosecution as P.W.-7, he has stated in his
statement that he has written on dying
declaration before making it that patient was
fully conscious and was in position to make
dying declaration. This certificate was given
by him on 05.11.2014 at 10 AM, he has also
stated that after conclusion of dying
declaration again he has given certificate, in
which it was written that during statement
Pinki was conscious. After writing the
certificate, he put his signature on it at 10:30
AM on 05.11.2014. So by this statement,
P.W.-7 Dr. G.S. Chauhan has legally proved
the certificate of fitness on dying declaration.

36. Additional City Magistrate, A.
Dinesh Kumar, who recorded the dying
declaration,
has
been
produced
by
prosecution as P.W.-9. He has stated in his
statement that after obtaining fitness
certificate from the doctor, he recorded the
statement of Smt. Pinki and P.W.-9 has
reproduced the statement of deceased in his
examination-in-chief, hence, P.W.-9 has
legally proved dying declaration and it was
accepted as Ex. KA-12. Further in his
statement, P.W.-9 has also corroborated the
certificate of fitness given by Dr. G.S.
Chauhan before and after making the dying
declaration. So prosecution has completely
succeeded in proving the dying declaration
Ex. KA-12 of the deceased. Hence, there is
no doubt regarding the veracity of dying
declaration. Now it comes the question of
corroboration of dying declaration. In this
regard, learned counsel for the appellant
has argued that trial court should not have
placed reliance on dying declaration
without corroboration. On reliability of
dying declaration and acting on it without
corroboration, Hon'ble Apex Court held in
Krishan Vs. State of Haryana (2013) 3
Supreme Court Cases 280 that it is not an
absolute principle of law that a dying
declaration cannot form the sole basis of
conviction of an accused. Where the dying
declaration is true and correct, the attendant
circumstances show it to be reliable and it
has been recorded in accordance with law,
the deceased made the dying declaration of
her own accord and upon due certification
by the doctor with regard to the state of
mind and body, then it may not be
necessary for the court to look for
corroboration. In such cases, the dying
declaration alone can form the basis for the
conviction of the accused. Hence, in order
to pass the test reliability, a dying
declaration has to be subjected to a very
close scrutiny, keeping in view the fact that
the statement has been made in the absence
of the accused, who had no opportunity of
testing the veracity of the statement by
cross-examination. But once, the court has
140 INDIAN LAW REPORTS ALLAHABAD SERIES
come to the conclusion that the dying
declaration was the truthful version as to
the circumstance of the death and the
assailants of the victim, there is no question
of further corroboration.

37. In Ramilaben Hasmukhbhai
Khristi Vs. State of Gujarat, (2002) 7 SCC
56, the Hon'ble Apex Court held that under
the law, dying declaration can form the sole
basis of conviction, if it is free from any
kind of doubt and it has been recorded in
the manner as provided under the law. It
may not be necessary to look for
corroboration of the dying declaration. As
envisaged, a dying declaration is generally
to be recorded by an Executive Magistrate
with the certificate of a medical doctor
about the mental fitness of the declarant to
make the statement. It may be in the from
of question and answer and the answers be
written in the words of the person making
the declaration. But the court cannot be too
technical and in substance if it feels
convinced about the trustworthiness of the
statement which may inspire confidence
such a dying declaration can be acted upon
without any corroboration.

38. From the above case laws, it
clearly emerges that it is not an absolute
principle of law that a dying declaration
cannot form the sole basis of conviction of
an accused when such dying declaration is
true, reliable and has been recorded in
accordance with established practice and
principles and if it is recorded so then there
cannot be any challenge regarding its
correctness and authenticity.

39. In dying declaration of deceased
Ex. KA-12, it is also important to note that
it was recorded on 05.11.2014 and the
deceased died on 10.11.2014. It means that
she remained alive for five days after
making
dying
declaration.
Hence,
truthfulness of the dying declaration can
further be evaluated from the fact that she
survived for five days after making dying
declaration from which it can reasonably be
inferred that she was in a fit condition to
make the statement at the relevant time.
Moreover, in the dying declaration, the
deceased did not unnecessarily involved the
other family members of the accusedappellant, she only attributed the acts of
cruelty, beating and burning to her husband
and that too, on being him a gambler and
alcoholic. It is also noteworthy that P.W.7
Dr. G.S. Chauhan and P.W.-9, A. Dinesh
Kumar, Additional City Magistrate, both
are absolutely independent witnesses. They
have not turned hostile.

40. In such a situation, the hostility of
P.W.-1,
P.W.-3
and
P.W.-4
cannot
demolish the value and reliability of the
dying declaration of the deceased, which
has been proved by prosecution in
accordance with law and is a truthful
version of the events that occurred and the
circumstances leading to her death. The
same is reliable and in fact, to some extent,
finds corroborations from the statement of
other witnesses . Hence being it completely
reliable dying declaration of deceased Ex.
KA-12 does not require any corroboration.

41. As already noticed, none of the
witnesses or the authorities involved in
recording the dying declaration had turned
hostile. On the contrary, they have fully
supported the case of prosecution beyond
reasonable doubt. The dying declaration is
reliable, truthful and was voluntarily made
by
the deceased,
hence,
this dying
declaration can be acted upon without
corroboration and can be made the sole
basis of conviction. Hence, learned trial
court has committed no error on acting on
10 All. Devi Dayal Vs. State of U.P. & Ors.
141
the sole basis of dying declaration. Learned
trial court was completely justified in
placing reliance on dying declaration Ex.
KA-12 and convicting and sentencing the
accused-appellant on the basis of it.

42. No other point or argument was
raised from the side of the appellant.

43. Keeping in view of the above
discussions, this Court is of definite
opinion that learned trial court has rightly
convicted and sentenced the accusedappellant and this appeal has no force.

44. The appeal lacks merit and is
accordingly, dismissed.
----------
(2021)10ILR A141
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 01.10.2021

BEFORE

THE HON'BLE RITU RAJ AWASTHI, J
THE HON'BLE ABDUL MOIN, J.

P.I.L. Civil No. 22411 of 2021

Devi Dayal ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Alok Singh

Counsel for the Respondents:
C.S.C.

A. Civil Law -Constitution of India,1950Article 226-challenge to- validity of holding
of office of pradhan by respondent no. 5the same attracted a disqualification being a
clerk in the Bank-application u/s 6-A of the
Act, 1947 for setting aside the election
would not lie for the purpose sought by the
petitioner-Moreso, the said election can be
questioned, keeping in view the Article
243(O)(b) of the Constitution of India,
would be by means of an election petition
u/s 12(C) of the Act, 1947-After the election
process has come to an end, the State
Election Commissioner, District Magistrate
and the Election Officer cease to have any
jurisdiction and the only authority which can
deal
with
and
decide
any
complaint
regarding the election is the Election
Tribunal-Thus, the petitioner may avail
other alternate remedies.(Para 1 to 21)

The petition is disposed of. (E-6)

List of Cases cited:

1. Amrendra Singh Vs St. of U.P. & ors. (2006)
1 AWC 917

2. Smt. Smt. Ram Kanti Vs D.M. & ors. (1995)
AWC 1465
3. N.P. Ponnuswami Vs Returning Officer,
Namakkal Constituency (1952) AIR SC 64
4. Krishnamoorthy Vs Sivakumar & ors. (2015)
AIR Vol-3 SCC 467

(Delivered by Hon'ble Ritu Raj
Awasthi, J.
&
Hon'ble Abdul Moin, J.)

1. Notices on behalf of opposite
parties no.1 to 3 have been accepted by the
office of learned Chief Standing Counsel.

2. Heard learned counsel for the
petitioner as well as Mr. Manish Mishra,
learned Standing Counsel appearing on
behalf of State Authorities.

3. The instant writ petition has been
filed in the nature of public interest
litigation seeking following reliefs:

"1. Issue a writ, order or
direction in the nature of mandamus
directing the opposite parties no. 1 to 3 to